Even in the framework of the price quote submitted by Wei to Elta, it priced the construction of the laboratory in the sum of ₪1,000, a sum that constitutes only a small part, a few percent, of the total price quote (P/567, line six; and also in a separate invitation to Levi, dated February 15, 2010, which Oshri testified constituted as a retroactive payment for the laboratory, the payment for the pilot was not significant and amounted to approximately NIS 6,000, N/332, Testimony of Oshri, p. 4512, s. 13 - p. 4514, s. 6; Even when we refer to the payment there in its entirety, the relative portion that can be attributed to the hours preceding the issuance of the BLM, according to N/333, does not amount to a significant amount). This is joined by the testimony of Rezinsky, a customer portfolio manager at VMware, in which he referred to the establishment of a laboratory as a matter that has no real significance, a "testing environment", which does not necessarily decide or give an advantage (p. 2547, paras. 13-25).
All of the above is sufficient to project on Wee's claim that the execution of the pilot ensured its victory and ruled out any possibility of pricing.
- We have therefore seen that the arguments of Wei and Oshri that in the indictment in question – in the case of VMware Lab – the request for quotations was a prima facie competition in which the final selection of Wei was determined in advance and even before the request for procurement in the request for quotations, which was made only as a cover.
- In this context, we would like to make a general comment that goes to the root of Wei and Oshri's arguments about competition for appearances.
Competition is the realm of uncertainty. The competitors, even if they make assumptions of one kind or another, including with respect to the customer's preference in the first place or to the advantage, even clear or unequivocal, of one competitor over another, do not know in advance and with certainty what the day will bring. The decision is not in their hands and is left to the authorized party of the client. Under this uncertainty, the competitors are supposed to offer the best offer that weighs all the considerations. Coordinating proposals – as stated above, is done behind the client's back and without his knowledge – depriving the bidder of the possible fruits of the competitive process. The attempt to justify the conduct in retrospect on the grounds that any of the competitors had an absolute advantage (in the charge here: Wei because of its experience in the relevant technology or because of the pilot), that the winner was clear, or that the project wanted one of the competitors, cannot justify coordinating proposals that were hidden from the client or qualifying him.